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A year after a judge struck down the state's
first-in-the-nation tobacco disclosure law, a federal appeals court
yesterday upheld the law's constitutionality, concluding that
efforts to protect public health outweigh companies' concerns about
revealing their trade secrets.
In a 2-1 decision, a three-judge panel of
the US Court of Appeals for the First Circuit found that the 1996
Disclosure Act, which requires companies to reveal ingredients added
to cigarettes, snuff, and chewing tobacco, "will put
consumers in a better position to know if their brand contains
harmful additives, and to assess the health risks involved."
The 44-page ruling reverses a September 2000 decision by US District
Judge George A. O'Toole Jr., who had concluded that the law violated
the constitutional rights of tobacco companies because it would
force them to reveal secret ingredient formulas that cost millions
of dollars to develop.
"The Constitution does not grant
tobacco companies a right to sell tobacco products without stating
what is in them," said Attorney General Thomas F. Reilly, whose
office has been battling with major tobacco companies since the law
was first passed. "This decision is a big public health
victory."
The law has been on hold since it was
passed in 1996, when Reilly and public health officials were sued by
Philip Morris, R. J. Reynolds, Brown & Williamson, Tobacco
Corp., Lorillard, and US Tobacco Co.
Michael Pfeil, a spokesman for Philip
Morris USA, said the company currently reveals an extensive list of cigarette
ingredients on its Web site, www.philipmorrisusa.com,
but believes the Massachusetts law goes too far.
"The concern with Massachusetts is
that the statute certainly could unfairly reveal competitively
sensitive brand information or brand recipes that we believe are
protected property and should remain protected," said Pfeil.
"That does not minimize our desire to make sure we are
providing information for consumers."
A 1986 federal law requires tobacco
companies to provide lists of ingredients in their products to the
US Department of Health and Human Services, but the information
isn't made public and doesn't include a breakdown by brand.
Boston attorney Henry C. Dinger, who
represents Philip Morris, said the appeals court decision should
trouble all companies because it "appears to deny that there's
any proprietary interest in trade secrets and thus makes trade
secrets vulnerable to disclosure whenever the government thinks it's
a good idea."
Dinger said the tobacco companies are
reviewing the decision and will decide whether to appeal to the US
Supreme Court or seek a full appeals court rehearing.
In overturning O'Toole's ruling, the First
Circuit concluded, "There is substantial reason to expect that
public disclosure of potentially harmful ingredients in tobacco
products will benefit the Massachusetts public."
In a dissenting opinion, Judge Bruce M.
Selya wrote that the state should be required to compensate tobacco
companies for forcing them to reveal their trade secrets.
"Because the majority's holding allows
states to ransack the trade secrets of virtually any business
without providing even minimal recompense, I respectfully
dissent," Selya wrote.
Warren Tolman, the former state senator who
wrote the tobacco disclosure law, hailed the appeals court ruling.
"If you can find out what's in your
Lucky Charms, why shouldn't you be able to find out what's in your
Lucky Strikes?" he said.
Greg Connolly, director of the state
Department of Public Health's tobacco control program, said,
"If the tobacco industry believes that adult smoking is an
adult choice, then the Commonwealth is going to make sure adult
smokers are given enough information to make an informed
choice."
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